UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4105
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
SIM ABA CAMPBELL,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr.,
District Judge. (CR-04-267)
Submitted: August 31, 2005 Decided: September 21, 2005
Before WILLIAMS, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen III, Federal Public Defender, Eric D. Placke,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Anna Mills Wagoner, United States Attorney, Lisa B.
Boggs, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Sim Aba Campbell pled guilty to distribution of 12.6
grams of cocaine base (crack), 21 U.S.C.A. § 841(b)(1)(B) (West
1999 & Supp. 2005) (Count Two), and possession of a firearm by a
convicted felon, 18 U.S.C. § 922(g)(1) (2000) (Count Four). He was
sentenced as a career offender to a term of 288 months imprisonment
on Count Two and to a concurrent 120-month sentence on Count Four.
U.S. Sentencing Guidelines Manual § 4B1.1 (2004). Campbell appeals
his sentence, arguing that, in light of United States v. Booker,
125 S. Ct. 738 (2005), the district court’s mandatory application
of the federal sentencing guidelines violated his Sixth Amendment
rights. He further contends that the court imposed an unreasonable
alternative sentence. We affirm.
In the district court, Campbell did not dispute his
career offender status. However, citing Blakely v. Washington, 542
U.S. 296 (2004), Campbell objected to the inclusion of drug
quantities he did not admit in the offense conduct section of the
presentence report, to enhancements under § 2K2.1(b)(4) and (b)(5),
to the assignment of any criminal history points other than for the
one prior conviction he admitted pursuant to his plea agreement,1
and to the career offender designation. He argued that he had
neither been charged with nor admitted the facts that supported the
1
Campbell admitted having one prior felony drug conviction,
which subjected him to an increased penalty under 21 U.S.C.A.
§ 841(b)(1)(B).
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enhancements or the increased offense level. The court overruled
Campbell’s Blakely objections and declined to impose an alternative
sentence, but added that, “[t]he only alternative the Court would
impose would just be a repeat of what the Court is imposing as a
part of the original sentence. That would be the alternative
sentence.”
Because Campbell preserved his Sixth Amendment claim by
objecting under Blakely to being sentenced as a career offender, we
review this issue de novo. United States v. Mackins, 315 F.3d 399,
405 (4th Cir. 2003) (de novo review of preserved Apprendi2 claim).
In Booker, the Supreme Court held that the mandatory manner in
which the federal sentencing guidelines required courts to impose
sentencing enhancements based on facts found by the court violated
the Sixth Amendment. 125 S. Ct. at 756. The Court remedied the
constitutional violation by severing two statutory provisions, 18
U.S.C.A. § 3553(b)(1) (West Supp. 2005) (requiring sentencing
courts to impose a sentence within the applicable guideline range),
and 18 U.S.C.A. § 3742(e) (West 2000 & Supp. 2005) (setting forth
appellate standards of review for guideline issues), thereby making
the guidelines advisory. Id. at 756-67.
After Booker, courts must calculate the appropriate
guidelines range, consider the range in conjunction with other
relevant factors under the guidelines and 18 U.S.C.A. § 3553(a)
2
Apprendi v. New Jersey, 530 U.S. 466 (2000).
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(West 2000 & Supp. 2005), and impose a sentence. This remedial
scheme applies to any sentence imposed under the mandatory
sentencing guidelines, regardless of whether or not the sentence
violates the Sixth Amendment. Booker, 125 S. Ct. at 769. However,
ordinary doctrines such as plain error and harmless error still
apply. Id.
The Supreme Court also reaffirmed its prior holding in
Apprendi that “[a]ny fact (other than a prior conviction) which is
necessary to support a sentence exceeding the maximum authorized by
the facts established by a plea of guilty or a jury verdict must be
admitted by the defendant or proved to a jury beyond a reasonable
doubt.” Booker, 125 S. Ct. at 756. We have since held that the
application of the career offender enhancement falls within the
exception for prior convictions where the facts were undisputed,
making it unnecessary to engage in further fact finding about a
prior conviction. United States v. Collins, 412 F.3d 515, 521-23
(4th Cir. 2005); see Shepard v. United States, 125 S. Ct. 1254
(2005) (holding that a court’s inquiry as to disputed facts in
connection with a prior conviction is limited to the terms of the
charging document, a plea agreement, a transcript of the plea
colloquy, or a comparable judicial record). In Collins, we
concluded that there was no Sixth Amendment violation. 412 F.3d at
523.
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Although Campbell contends that, under Booker, the
district court violated his Sixth Amendment rights by making
impermissible factual findings to classify him as a career
offender, his claim is foreclosed by Collins. Campbell did not
dispute that he satisfied the requirements for career offender
status. Moreover, the district court could determine from the
judicial record of Campbell’s prior drug convictions that he had
the necessary two prior felony convictions for a controlled
substance offense. See USSG § 4B1.2(b). We conclude that no Sixth
Amendment violation occurred.
Campbell maintains that he preserved for appeal the issue
of the district court’s mandatory application of the guidelines.
We need not resolve this issue because, under either a plain error
or harmless error standard of review, in light of the district
court’s indication that it would impose the same discretionary
sentence, we conclude that no reversible error occurred. See
United States v. White, 405 F.3d 208, 223 (4th Cir. 2005) (noting
that substantial rights inquiry under plain or harmless error is
the same and that only difference is who bears burden of proof).
Finally, Campbell contends that the alternative sentence
the district court said it would impose, should it choose to do so,
was not reasonable because the district court did not foresee that
Booker would make the guidelines advisory. We note that the
district court did not in fact impose an alternative sentence.
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Because Campbell is not serving an alternative sentence, he is not
entitled to review of the district court’s hypothetical alternative
sentence.
We therefore affirm the sentence imposed by the district
court. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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